Notice2022-25103
Adley Dasilva, P.A.; Decision and Order
Primary source
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Published
November 18, 2022
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 87 Issue 222 (Friday, November 18, 2022)</title>
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[Federal Register Volume 87, Number 222 (Friday, November 18, 2022)]
[Notices]
[Pages 69341-69342]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25103]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 22-50]
Adley Dasilva, P.A.; Decision and Order
On August 18, 2022, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Adley Dasilva, P.A.
(Respondent). OSC, at 1, 3. The OSC proposed the revocation of
Respondent's Certificate of Registration No. MD4826915 at the
registered address of 1941 Southeast Port Saint Lucie Boulevard, Port
St. Lucie, Florida 34952. Id. at 1. The OSC alleged that Respondent's
registration should be revoked because Respondent is ``without
authority to handle controlled substances in the State of Florida, the
state in which [he is] registered with DEA.'' Id. at 1-2 (citing 21
U.S.C. 824(a)(3)).
By letter dated September 2, 2022, Respondent requested a hearing.
On September 15, 2022, the Government filed a Motion for Summary
Disposition (Government's Motion), which Respondent opposed. On
September 28, 2022, the ALJ granted the Government's Motion and
recommended the revocation of Respondent's registration, finding that
because Respondent lacks state authority to handle controlled
substances in Florida, the state in which he is registered with DEA,
there is no genuine issue of material fact. Order Granting the
Government's Motion for Summary Disposition, and Recommended Rulings,
Findings of Fact, Conclusions of Law, and Decision of the
Administrative Law Judge (Recommended Decision or RD), at 4-5.
The Agency issues this Decision and Order based on the entire
record before it and makes the following findings of fact.
Findings of Fact
On June 8, 2022, the Florida Department of Health issued an Order
of Emergency Suspension of License which ordered the immediate
suspension of Respondent's Florida P.A. license. Government's Motion
Exhibit (GX) B, at 1, 33-34.
According to Florida's online records, of which the Agency takes
official notice, Respondent's Florida P.A. license is currently under
an ``emergency suspension'' status and Respondent is not authorized to
practice medicine in Florida.\1\ Florida Department of Health License
Verification, <a href="https://mqa-internet.doh.state.fl.us/MQASearchServices">https://mqa-internet.doh.state.fl.us/MQASearchServices</a>
(last visited date of signature of this Order). Accordingly, the Agency
finds that Respondent is not currently licensed to engage in the
practice of medicine in Florida, the state in which he is registered
with the DEA.
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\1\ Under the Administrative Procedure Act, an agency ``may take
official notice of facts at any stage in a proceeding--even in the
final decision.'' United States Department of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C 556(e),
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show the
contrary.'' Accordingly, Respondent may dispute the Agency's finding
by filing a properly supported motion for reconsideration of
findings of fact within fifteen calendar days of the date of this
Order. Any such motion and response shall be filed and served by
email to the other party and to Office of the Administrator, Drug
Enforcement Administration at <a href="/cdn-cgi/l/email-protection#abcfceca85cacfcfc485cadfdfc4d9c5ced2d8ebcfceca85ded8cfc4c185ccc4dd"><span class="__cf_email__" data-cfemail="99fdfcf8b7f8fdfdf6b7f8ededf6ebf7fce0ead9fdfcf8b7eceafdf6f3b7fef6ef">[email protected]</span></a>.
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Discussion
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized
to suspend or revoke a registration issued under section 823 of the
Controlled Substances Act (CSA) ``upon a finding that the registrant .
. . has had his State license or registration suspended . . . [or]
revoked . . . by competent State authority and is no longer authorized
by State law to engage in the . . . dispensing of controlled
substances.'' With respect to a practitioner, the DEA has also long
held that the possession of authority to dispense controlled substances
under the laws of the state in which a practitioner engages in
professional practice is a fundamental condition for obtaining and
maintaining a practitioner's registration. See, e.g., James L. Hooper,
M.D., 76 FR 71, 371 (2011), pet. for rev. denied, 481 F. App'x 826 (4th
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617
(1978).\2\
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\2\ This rule derives from the text of two provisions of the
CSA. First, Congress defined the term ``practitioner'' to mean ``a
physician . . . or other person licensed, registered, or otherwise
permitted, by . . . the jurisdiction in which he practices . . . ,
to distribute, dispense, . . . [or] administer . . . a controlled
substance in the course of professional practice.'' 21 U.S.C.
802(21). Second, in setting the requirements for obtaining a
practitioner's registration, Congress directed that ``[t]he Attorney
General shall register practitioners . . . if the applicant is
authorized to dispense . . . controlled substances under the laws of
the State in which he practices.'' 21 U.S.C. 823(f). Because
Congress has clearly mandated that a practitioner possess state
authority in order to be deemed a practitioner under the CSA, the
DEA has held repeatedly that revocation of a practitioner's
registration is the appropriate sanction whenever he is no longer
authorized to dispense controlled substances under the laws of the
state in which he practices. See, e.g., James L. Hooper, 76 FR at
71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006);
Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts,
M.D., 53 FR 11,919, 11,920 (1988); Frederick Marsh Blanton, 43 FR at
27,617. Moreover, because ``the controlling question'' in a
proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder
of a practitioner's registration ``is currently authorized to handle
controlled substances in the [S]tate,'' Hooper, 76 FR at 71,371
(quoting Anne Lazar Thorn, 62 FR 12,847, 12,848 (1997)), the Agency
has also long held that revocation is warranted even where a
practitioner is still challenging the underlying action. Bourne
Pharmacy, 72 FR 18,273, 18,274 (2007); Wingfield Drugs, 52 FR
27,070, 27,071 (1987). Thus, it is of no consequence that Respondent
is still challenging the underlying action here. See Respondent's
Response to Government's Motion; RD, at 4-5. What is consequential
is the Agency's finding that Respondent is not currently authorized
to dispense controlled substances in Florida, the state in which he
is registered with the DEA.
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According to Florida statute, ``A practitioner, in good faith and
in the course of his or her professional practice only, may prescribe,
administer, dispense, mix, or otherwise prepare a controlled
substance.'' Fla. Stat. 893.05(1)(a) (2022). Further, a
``practitioner'' as defined by Florida statute includes ``a physician
assistant licensed under chapter 458 or 459.'' \3\ Id. at 893.02(23).
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\3\ Chapter 458 regulates medical practice and applies to
Respondent. GX B, at 2.
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Here, the undisputed evidence in the record is that Respondent is
not currently a licensed practitioner in Florida, and a physician
assistant must be a licensed practitioner to dispense a controlled
substance in Florida. Thus, because Respondent lacks authority to
handle controlled substances in Florida, Respondent is not eligible to
maintain a DEA registration based in Florida. Accordingly, the Agency
will order that Respondent's DEA registration be revoked.
Order
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No.
MD4826915 issued to Adley Dasilva, P.A. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby
deny any pending applications of Adley Dasilva, P.A., to renew or
modify this registration, as well as any other pending application of
Adley Dasilva, P.A., for additional registration in Florida. This Order
is effective December 19, 2022.
Signing Authority
This document of the Drug Enforcement Administration was signed on
November 9, 2022, by Administrator Anne Milgram. That document with the
original signature and date is maintained by DEA. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DEA Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of DEA. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2022-25103 Filed 11-17-22; 8:45 am]
BILLING CODE 4410-09-P
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